Peter Wallwork, chief executive of the Credit Services Association (CSA), explains how and why the new Ofcom policy on persistent misuse could affect its members.
UK communications industries regulator Ofcom’s new ‘persistent misuse’ policy came into force on 1 March 2017. The policy outlines how Ofcom will use its powers to take action if a person ‘persistently misuses an electronic communications network or service’. The main focus of the policy for our industry is on silent and abandoned telephone calls and Ofcom will prioritise enforcement action wherever forms of misuse cause significant consumer harm.
The CSA had significant concerns about the original policy that was consulted on last year because the proposals to impose zero tolerance on abandoned calls would effectively have rendered the ‘compliant’ use of automated dialling systems impossible. Ofcom then revised the policy to take on board our feedback stating that: “Instead, we will apply the statutory definitions of both persistence and misuse on a case-by-case basis, taking account of the ordinary meaning of the words.”
The definition of ‘persistent misuse’ therefore appears open to some interpretation, which could be viewed as a positive factor in that it allows firms to set their own position on persistent misuse, but is also a troublesome factor in that it also opens that interpretation to clients.
The move to a ‘case-by-case’ view on persistent misuse has both pros and cons. It will be for Ofcom to exercise their discretion to determine whether a firm has been engaged in persistent misuse and also determine where misuse is repeated enough that it is “clear that it represents a pattern of behaviour or practice”. This means that firms will need to make their own assessments of the statement of policy and set their own positions on persistent misuse, including the efforts they take to prevent such misuse. Placing the responsibility on firms for establishing and monitoring their compliance with the statement of policy addresses the fear that firms would be obliged to report all instances of misuse to the FCA, as only persistent misuse would be a breach.
We are encouraging our members and their clients to engage with each other to discuss expectations around abandoned call rates, dialler strategies and their approach to compliance with the statement of policy.
There are also other aspects of the policy that will have an impact on our members and we are engaging with Ofcom to ensure that these are fully understood and implemented. One such aspect is the inclusion of ‘agent behaviour’ which could result in ‘dual-regulation’.